Shaw v. Clark

Where W. was employed by 0. to go to the creditor and purchase of him a judgment debt against C for less than its amount, and 0. furnished W. the money, who purchased without disclosing to the creditor that he was agent for the debtor, this operated but as part payment of said debt by C.

■ This was an action of debt on judgment. Pleas, 1st, Payment — 2d, That Leighton, who really owned the debt, sold it to one J. Weeks, who discharged the defendant therefrom. Issues joined. On trial, it was admitted, that Leighton was the owner of this judgment debt. The defendant introduced evidence to prove, that J. Weeks sent S. Weeks with'five dollars to purchase this debt, and Leighton understanding the purchase was for J. Weeks, agreed to sell the same for the five dollars, (which was afterwards paid him by S. Weeks,) and gave order on B. F. Deming, Esq. for the execution. The plaintiff introduced testimony to prove, that the five dollars was furnished J. Weeks by the defendant for this purpose, and that he acted in this business for the defendant’s benefit, and at his request, and before the commencement of this suit, Leighton had offered back the five dollars, which was refused. The court charged the jury, if they should find from the evidence that J. Weeks used the funds of the defendant at his request, and acted as his agent in buying the judgment, and that those facts were unknown to Leighton, the transaction would amount to nothing more than a part payment of the judgment, and they ought to find in that case for the plaintiff t0 recove}’ balance. Exceptions were filed to this charge; and after verdict and judgment for the plaintiff, the cause was passed to this court. insisted, 1st, That the sale to Weeks vested the debt in him, and he had the right to discharge the defendant. 2d, That an agreement to receive part of a debt, may, under certain circumstances, operate as a discharge. — 1 B. & C. 431.' — 2 Saund. Plea, and Ev. 233. — Henderson vs. Moor, 5 Cranch, 11. — 3 Peters. Cond. Rep. 172. — 1st. The purchase by Weeks, supposing the fact that the money was furnished by the defendant, was a fraud on the creditor, and void. 2d. The payment of part of a debt cannot be paymant or satisfaction in full.— l Chitty on Con. 279. — Coke R. 182, Pynnel’s case. — 5 East. 230, Filch vs. Sutton. — 17 John. R. 174, Seymour vs. Minium. — When a part is paid for the whole debt debt by a third person, it is a discharge of all.